1 Fair Work Act 2009 s 318—Application for an order relating to instruments covering new employer and transferring employees Application by Redpath Australia Pty Ltd (AG2024/5033) Mining industry COMMISSIONER LIM PERTH, 25 FEBRUARY 2025 Application for an order relating to instruments covering a new employer and transferring employees – transfer of business from an old employer to new employer likely – likely new employer wishes to harmonise the terms and conditions of employment of transferring and non-transferring employees – no employees disadvantaged by proposed order in relation to terms and conditions of employment – appropriate and not contrary to public interest to make orders sought – discretion exercised – application granted. 1. Introduction [1] Redpath Australia Pty Ltd has made an Application under s 318 of the Fair Work Act 2009 (Cth) for orders in relation to employees who are: a) currently engaged by RUC Mining Contractors Pty Ltd at the Kalgoorlie Service Centre in Western Australia; b) currently covered by the RUC Mining Contractors Enterprise Agreement 2020; and c) anticipated to commence work directly with Redpath (Transferring Employees). [2] Redpath seeks the following Orders: a) that the RUC Agreement, as a transferable instrument, not cover Redpath and Transferring Employees with respect to their employment with Redpath; and b) that the Transferring Employees instead be covered by the Redpath Australia Town Based Maintenance Facilities Enterprise Agreement 2023 on commencement of employment with Redpath. [2025] FWC 574 DECISION [2025] FWC 574 2 [3] I have considered all of the factors set out in s 318(3) and have concluded that it is appropriate and not contrary to the public interest to make the Orders sought under s 318. The Orders issue concurrently with this decision. [4] My detailed reasons for granting the Orders follow. 2. Background [5] Redpath submitted evidence from Ms Nicole Mann, the Human Resources Manager in support of the Application. [6] The Application concerns approximately 26 RUC employees who are employed at the Kalgoorlie Service Centre in Western Australia and who are covered by the RUC Agreement. [7] Both Redpath and RUC operate the in the mining industry. In March 2024, Redpath acquired RUC. Redpath seeks to directly employ employees of RUC based at the Kalgoorlie Service Centre. [8] In November 2024, Redpath commenced a consultation process with RUC employees. This included information sessions held with the relevant employees on Thursday 14 November 2024 and Thursday 21 November 2024. [9] On Monday 18 November 2024, Redpath distributed a factsheet to the relevant employees explaining that:1 (a) They would receive an offer of employment with Redpath if Redpath’s application under s 318 was successful; (b) All RUC employees at the Kalgoorlie Service Centre would receive an offer of employment with Redpath; (c) They would not be paid any less than their current rates of pay; (d) All accrued leave entitlements would transfer across; (e) Current rosters would be maintained; and (f) A current non-contractual work benefit of a 30-minute meal break would be honoured. [10] Across late November and early December 2024, all RUC employees at the Kalgoorlie Service Centre confirmed in writing that they understood the Application and supported it.2 3. Legislative framework [2025] FWC 574 3 [11] Section 317 of the Act enables the Commission to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer. [12] The discretion to make the Orders sought by Redpath under s 318(1) of the Act will only be exercised after the factors set out in s 318(3) of the Act are considered.3 These factors, which must be read having regard to the objects of the Part, are intended to enable the Commission to balance appropriately the protection of employees’ entitlements under certain instruments with the need for some flexibility to depart from the default rules about coverage of instruments following a transfer of business.4 [13] Section 318 of the Act sets out the circumstances in which an order such as that sought by Redpath may be made by the Commission: 318 Orders relating to instruments covering new employer and transferring employees Orders that the FWC may make (1) The FWC may make the following orders: (a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee; (b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee. Who may apply for an order (2) The FWC may make the order only on application by any of the following: (a) the new employer or a person who is likely to be the new employer; (b) a transferring employee, or an employee who is likely to be a transferring employee; (c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement; (d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b). Matters that the FWC must take into account (3) In deciding whether to make the order, the FWC must take into account the following: (a) the views of: (i) the new employer or a person who is likely to be the new employer; and (ii) the employees who would be affected by the order; [2025] FWC 574 4 (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment; (c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement; (d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer; (f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer; (g) the public interest. Restriction on when order may come into operation (4) The order must not come into operation in relation to a particular transferring employee before the later of the following: (a) the time when the transferring employee becomes employed by the new employer; (b) the day on which the order is made. [14] The exercise of the discretion given to the Commission in this regard is undertaken within the object of this Part of the Act, which states as follows: 309 Object of this Part The object of this Part is to provide a balance between: (a) the protection of employees’ terms and conditions of employment under enterprise agreements, certain modern awards and certain other instruments; and (b) the interests of employers in running their enterprises efficiently; if there is a transfer of business from one employer to another employer. 4. Consideration 4.1 s 318(2)(a) – application by the new employer of a person who is likely to be the new employer [15] Redpath has standing to make the Application as the new employer or likely new employer. 4.2 s 318(3)(a)(i) – the views of the new employer of a person who is likely to be the new employer [2025] FWC 574 5 [16] Redpath submits that the activities in both workplaces by the selected workforce are highly similar. I am satisfied that Redpath, as the likely new employer, wishes to harmonise the terms and conditions of employment of transferring and non-transferring employees. 4.3 s 318(3)(a)(ii) – the views of the employees who would be affected by the order [17] Redpath held multiple consultation sessions with Transferring Employees and provided factsheets to the Transferring Employees that explained the effect of the Application on their employment. The Transferring Employees also had the opportunity to provide their views on the Application to my Chambers.5 My Chambers did not receive any correspondence from the Transferring Employees. 4.4 s 318(3)(b) – whether any employees would be disadvantaged by the order [18] I have reviewed the terms of the RUC Agreement and Redpath Agreement. I accept that that no employees would be disadvantaged by the proposed Orders in relation to their terms and conditions of employment. 4.5 s 318(3)(c) – nominal expiry date [19] I note that the nominal expiry date of the RUC Agreement is Saturday 6 April 2024. 4.6 s 318(3)(d) & (e) – negative impact on productivity and significant economic disadvantage [20] Redpath submits that there is currently a workforce unification process underway between RUC and Redpath. This is to increase efficiency and assist Redpath’s competitiveness in the market. If the RUC Agreement remains in place, this will hamper this unification process. 4.7 s 318(3)(f) – degree of business synergy [21] Redpath did not make any submissions on this point. I do not make any findings in this regard. 4.8 s 318(3)(g) – public interest [22] I am satisfied that it is in the public interest to have harmonised conditions of employment applying to employees doing the same or similar work in circumstances where there is no detriment to transferring employees. 5. Conclusion [23] In accordance with s 318(4), the Orders will come into effect on the date that the Orders are made, or from the time when the Transferring Employees commence working for Redpath, whichever is the latter.6 [2025] FWC 574 6 COMMISSIONER Matter determined on the papers. Printed by authority of the Commonwealth Government Printer <AE507700 PR784746> 1 Form F40, Appendix 6. 2 Form F40, Appendix 8. 3 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1259]. 4 Ibid. 5 Directions dated Tuesday 14 January 2025 at [7]. 6 PR784747.